This week, Twitter seemingly took a bold stance against the "Patent Wars" when the social networking company made public its new Innovator's Patent Agreement (IPA). But a closer look at the document (which you can view here on GitHub) reveals how much legal leeway Twitter left itself.
The agreement states that patents assigned to Twitter by inventors that work there will be used only for "defensive" purposes. But "defensive" doesn't just mean "in response to being sued by someone else." By "defensive," Twitter means that the patents can be asserted (and here we quote from the IPA itself):
(a) against an Entity that has filed, maintained, threatened, or voluntarily participated in an intellectual property lawsuit against Assignee or any of Assignee’s users, affiliates, customers, suppliers, or distributors;
(b) against an Entity that has filed, maintained, or voluntarily participated in a patent infringement lawsuit against another in the past ten years, so long as the Entity has not instituted the patent infringement lawsuit defensively in response to a patent litigation threat against the Entity; or
(c) otherwise to deter a patent litigation threat against Assignee or Assignee’s users, affiliates, customers, suppliers, or distributors.
(To assert patent claims for any other purpose, Twitter would need to have prior written permission from all the inventors of the patent.)
Now take a closer look at item (b), which allows Twitter to file suit "against an Entity that has filed, maintained, or voluntarily participated in a patent infringement lawsuit against another in the past ten years" (emphasis added). Yes, you read that right: If a company has initiated a lawsuit in the past ten years - against any other company, not just Twitter - for any reasons other than defensive ones, Twitter gives itself permission to punish the wrongdoer (read: "nasty troll") by suing them. It seems a little strange until you realize that, as an article on Forbes.com noted, "Twitter wants to take the high moral ground and preserve all its options."
The problem is, there are still ways for the IPA to blow up in Twitter's face. What if an infringer bribes one of Twitter's inventors to refuse to give permission to sue them? What if Twitter puts pressure on an employee to allow a lawsuit, and finds a convenient way to dismiss employees who withhold their permission? What if the IPA makes Twitter less attractive to VCs and current stockholders because it looks like the company can't or won't make the most of its patents?
The patent wars are here to stay, and Twitter's sanctimonious posturing is not going to change that. The company is obviously trying to appear to flutter above the patent fray while reserving the right to dive right into it. It will be interesting, however, to see how the IPA works out for Twitter - and if other companies will follow suit with their own such inventor agreements.
Ever since Intellectual Ventures wholeheartedly entered the patent litigation game, I no longer believe anyone -- not even Twitter -- who claims to be amassing patents for "defensive purposes only." The siren song of profit is too hard to resist for very long.